October 07, 2007

Progress?

by emptywheel

I'll withhold judgment until I see the text of the bill, but from this story, it appears the Progressive Caucus made some progress--though not on all counts--in their efforts to ensure the permanent FISA amendment safeguards privacy and civil liberties.

House Democrats plan to introduce a bill this week that would let a
secret court issue one-year "umbrella" warrants to allow the government
to intercept e-mails and phone calls of foreign targets and would not
require that surveillance of each person be approved individually.

[snip]

The bill would require the Justice Department
inspector general to audit the use of the umbrella warrant and issue
quarterly reports to a special FISA court and to Congress, according to
congressional aides involved in drafting the legislation. It would
clarify that no court order is required for intercepting communications
between people overseas that are routed through the United States. It
would specify that the collections of e-mails and phone calls could
come only from communications service providers -- as opposed to
hospitals, libraries or advocacy groups. And it would require a court
order when the government is seeking communications of a person inside
the United States, but only if that person is the target.

[snip]

The bill would not include a key administrative objective: immunity for
telecommunications firms facing lawsuits in connection with the
administration's post-Sept. 11 surveillance program.

That is, this bill appears to have regular oversight of the program (IG reports to both FISC and Congress). And it refuses to give immunity to telecoms without first knowing what those telecoms did. These account for several of the eight demands issued by the Progressive Caucus. But the bill only requires a FISA warrant if the surveillance targets someone in the US, not if it touches on someone in the US (though this is better than the "related to" language in the amended FISA act).

There are several other important details in this story.

First, the story reveals that Silvrestre Reyes and John Conyers are the ones doing the drafting. This puts the spotlight on Conyers--a member of the Progressive Caucus but also reported to be the one who folded with the FISA amendment in August.

Second, the story reveals that the Administration claims we're going to get the documentation on surveillance we've been demanding. Only, they're going to get it on October 22, and this bill is scheduled for a vote on October 17.

The White House on Friday evening told the chairmen of the Senate and
House intelligence and judiciary committees that it would put together
that information by Oct. 22 but would not say when or whether it would
make the information available to lawmakers.

"We have told the White House for weeks that the House plans to
consider FISA legislation on October 17," said a senior Democratic
congressional aide involved in the White House negotiations. "How can
members of Congress consider any proposal for immunity if the documents
relating to the company's conduct aren't even being assembled by White
House lawyers until October 22?"

I'm curious how this timing affects Leahy's plans for Mukasey's nomination hearings--but at least for the moment it also means that Dems will hold fast on the immunity question. We hope.

Go read the article for its discussion of the four tiers of immunity the Senate (read, Jay the Jellyfish Rockefeller) is considering. It ranges from blanket immunity to indemnification to--most interesting--making the government the defendant in lieu of the service providers (though that would likely put us right back into the State Secrets trap).

And finally, this tidbit confirms something I had suspected, but never seen verified:

Michael Sussmann, a partner at Perkins Coie in Washington who
represents communications providers, said carriers that are alleged to
have participated in the government's warrantless surveillance program
want immunity to halt pending cases, while those who did not are either
agnostic or do not want their competitors to get a free pass. [my emphasis]

This is saying that companies like Qwest, which was reported to have refused the Administration's request for consumer data, are not supporting AT&T and Verizon's efforts to gain immunity. Further, since Sussman describes two positions (agnosticism and opposition), it suggests there are at least two different service providers which did not participate in the government's program. It'd be awfully useful to learn which service providers are which, not just to give the ones that refused to cooperate a competitive advantage, but also to maximize their leverage in this debate.

In any case: October 17, at least according to this article. That gives us ten days to tip this a little further to the progressive side.

Comments

At the Battle of Waterloo in 1815, Napoleon and his re-assembled 'Grand Army' faced-off for the first and only time against the Duke of Wellington, a Leahy type of guy - sharp, determined and patient.

It was Napoleon's Plan of Campaign to attack the 'Allies' - the British and the Prussians, who were Former Enemies - separately before they could combine against him and gain substantial numerical advantage.

In the days immediately preceding Waterloo, Napoleon had decisively defeated the Prussians, under Blucher, at Ligny, who then fell back in disarray. Now, Blucher - believe it or not - was an Arlen type of guy - headstrong and proud, but under it all, he had Honor. It's actually due to the fact that Blucher acted on his honor, that Waterloo turned out the way it did...

On the morning of Waterloo, the Armies of Napoleon and Wellington were arrayed across from each other, with just a few key pieces of terrain between them, including a farmhouse that changed hands all day long. The Battle opens with Napoleon making a furious Artillery Barrage on the British lines.

Wellington, however, due to many years of campaigning, and winning, against Napoleon's seconds in Spain, had become a Defensive specialist in the face of the Emperor's Always Aggressive Style. At Waterloo, Wellington anticipated the bombardment and had his men positioned on the 'back slope' of every rise so that the cannonballs would either pass safely 'over head' or get stopped by the (soggy) ground.

Having weathered the Bombardment, Wellington then moved his men to the forward slopes, and tactically re-positioned a force on his wing to be able to fire into an anticipated Napoleon follow-up Infantry assault 'up the middle' - which is exactly what Napoleon did, eventually committing the cream of his reserve, the Imperial Guard.

Even having bested Napoleon tactically, so far, the Battle was still 'a very close run thing' as Wellington would later describe it - it could have gone either way several times during the day.

Meanwhile, the Prussian General, Blucher, who had taken a head wound at Ligny and was falling back to regroup away from Waterloo, hears Napoleon's Bombardment and realizes that time is of the essence - Wellington was taking a pounding and needed help. Blucher then rides ahead of his Army and rallies his battered Troops to turn around and 'march to the sound of the guns.'

Blucher reverse-collects his units, now going towards Waterloo, where he arrives at the battlefield just as Napoleon commits his last reserve.

After playing defense all day, Wellington sees Blucher and his Troops cresting a ridge on the far side of Napoleon and realizes that Now is the Time, and rides to the top of a hill - where he famously takes off his 'paperboat' hat and waves it forward - the signal for the General Attack.

The Allies chased Napoleon all the way to exile on St. Helena, where he died in 1821, after re-writing the history of his Campaigns to 'enhance' the Legend of his already truly great Military Genius.

And it's true, on that day - in a very close run thing - it took Former Enemies working together in good faith and honorable effort to bring down the Tyrant, and all of Europe was the better for it.

Since the title was phrased as a question; my answer is no. No progress. Whatever thread you first discusses they were pulling the bill, I commented that the Dem Leadersheep will come up with a couple of token meaningless concessions and prepare a parliamentary and whip count strategy to make sure the progressives don't cause any more problems. This "New Bill" is exhibit freaking A of the "every now and then bmaz stumbles on an acorn" truth.

From the WaPo article: "Some conservatives want no judicial oversight, and some liberals oppose any notion of a blanket order," said James X. Dempsey, Center for Democracy and Technology policy director. "So the challenge of the Democratic leadership is to strike a balance, one that gives the National Security Agency the flexibility to select its targets overseas but that keeps the court involved to protect the private communications of innocent Americans." What total crock of dung. "The challenge of the Democratic leadership" is to enact a law THAT COMPLIES WITH THE CONSTITUTION; not to "strike a balance" unconstitutional and totally off the the charts unconstitutional. This is absolute bullshit. The 4th Amendment requires particularized and individualized basis for government invasion. Period. Blanket and umbrella BS does NOT comply. And having the DOJ IG, a member of the administration, who is NOT a neutral and detached magistrate, compile a self serving report of what the administration has done, and submit it to FISC quarterly AFTER THE FACT, doesn't do diidly squat for me and/or the Constitution either.

The house has not done anything positive on immunity either. They have sunk back to the same exact shell game that got us the wonderful Pillage er Protect America Act. They are playing a shell game and hiding the immunity pea under the Senate shell momentarily. This is but a slightly reformulated repeat of the PAA process; all of a sudden, the Senate will have something that screws us and the House will jigger the procedural rules and pass the equivalent, screwing us for good.

Lastly, and man am I on a pissed off roll right now; Perkins Cole. For any and all who have not had the extreme pleasure of dealing with Perkins Cole; well, you simply could not possibly deal with a group of bigger, more belligerent, more arrogant, more ethically dubious, underhanded jerks. NOTHING they say or do should be believed or trusted. They have the have the law firm equivalent of the credibility and good will of Dick Cheney. Nuff said.

The scary thing about this bill, if the description is valid, and if it goes to the floor and is approved, is the back-door it gives the telecos on lawsuits. Further along in the WaPo article it's stated one of the potential provisions of the bill is this: if a teleco is sued for violation of privacy, and loses, the government pays the damages, not the teleco. This means there is no accountability for the telecos. They do the Administration's bidding, and the taxpayers (i.e. Thou and I) foot the legal costs.

I'm with bmaz on this one. I don't see this as progress at all. This is the Congress of the United States endorsing its own irrelevancy. At most, they are fighting over the terms of their capitulation, to see which faction is most willing to sacrifice the Constitution at the altar of national security.

This is the key part of any legislation, and it should absolutely kill off this BS

And it would require a court order when the government is seeking communications of a person inside the United States, but only if that person is the target.

NO NO NO NO NO

There MUST be a warrant, even if the person in the US is not the target, as there's no doubt this Administration will use that loophole to warrantlessly spy on purely domestic communications and political opponents/critics

And why aren't the Dems screaming about how DNI McConnell has outright lied, repeatedly, and further insist that any revision of the FISA laws after they sunset will ONLY occur if McConnell steps down

To extend this power given to McConnell of all people is beyond insulting, it's galling

Reyes is my Representative, and he's completely worthless, but I was surprised to see Conyers apparently getting ready to cave in to the W crowd on this one

what bmaz said - except that I do think Perkins is where Swift went to work (and who helped him on Hamdan) and I do know some nice-ish folks with parts of that firm. It's pretty darn big so there are bound to be a few ok people there *g*

Mary, it is an absolutely huge firm; so you are right, there are probably a few decent folks there. I had a pretty heated little war with a couple of the senior muckety mucks in Seattle and I can honestly report there was one line level paralegal that seemed human..... I respect Chalrie Swift a lot; if he is there, he needs to get out before the dark ethos consumes him.

Not good enough. Not good enough. Surveillance on communications in which a US person is a participant should be subject to a warrant requirement, regardless of whether the US person is "the" target. The whole FISA scheme was intended to apply to communications involving a US person -- a completely foreign to foreign communication requires no warrant from either a regular court or the FISC -- so saying that the Administration can conduct warrantless surveillance on a US person so long as s/he is not "the" target leaves the Administration a lot of room to, how shall we say, game the system. It permits the use of warrantless surveillance for essentially domestic law enforcement purposes, rather than "foreign intelligence," since all the Administration need do is assert that the primary target of the surveillance is on the foreign end of the communication -- even if that is a bald-faced lie.

Give this Administration an inch, and they'll take a mile. Or ten. The permanent amendment should do no more than fix the "foreign to foreign through US switch" problem. Otherwise, the original FISA scheme is perfectly adequate (at least until the Oregon decision reaches the higher courts).

I guess that lets the cat out of the bag: when the telcoms rewired the backbone in the early 90's, they neglected to tell their foreign customers that their calls would be routed through and monitored by the U.S. A good percentage of their customers probably suspected this, and some probably get the US to do their domestic spying for them when it is illegal for the foreign country to do it themselves. Well, the telcoms brought it upon themselves and now they can not sell their systems as 'secure'.

As a witness in a case that got rolled into COINTELPRO, I can say that we need warrents for each wiretap in the U.S, not just the targets. Further, we must be very careful about the data mining. IMO there is going to be datamining because we have no way of live operators or tape recorders listening in on millions of calls daily. So there will be datamining. What I learned from COINTELPRO was that everytime there is a third party selling info to the gov., the info was gussied up or falsified to look like more of a danger/threat/whatever the gov. was looking for that day, because third parties were paid by the incidence of 'good info'. i.e., don't let Poindexter's company do the job because he'll empty the till and scream 'terrorist' so often that no one will believe it when he actually hits upon the truth. And the data will stick around for years and years, for people to go back and data mine, or pervert or whatever they want to do with it - blackmail and manipulation of the financial markets seem likely. I say there have to be very very exacting standards, with the penalties clearly defined.

Oh. Wait, we already had that and the telcoms went ahead and did it anyway, and it seems like someone wants the taxpayers to pay for it. O.K. time to negotiate - maybe we get the telcoms to pay pennies on the dollar in fines, in return for admitting what they did, acknowledging that they were wrong, and that the next time it will be double the previous penalties with the legal costs taken from the board's personal pockets. Where should the fines (small though they may be) end up? IMO the fines should go proportionately by size to the telcoms that did not participate in the rape of the constitution. Rewards for good behavoir.

Since we know Qwest is the opposition company, why don't we call them to see how we as citizens support them in their stance?

Bmaz, I agree with you. What do we do between now and October 17th to address the concerns? It needs to be organized and with high citizen participation. I wonder if ACLU, Electronic Frontier Foundation and MoveOn would partner on this? Two of them may not be able to because of the court cases they represent on this matter.

"Extensive news reports have claimed that AT&T, BellSouth (now part of AT&T), and Verizon offered the NSA access to certain information from their networks, and some reports have indicated that AT&T even allowed the government to install optical splitters at key locations."

* = Not a company contacted by Rep. John Conyers.
[1] The answer did not explicitly address NSA but said that compliance happens only if required by law.
[2] Provided by a source with knowledge of what this company is telling Conyers. In the case of Sprint Nextel, the source was familiar with Nextel's operations.
[3] As part of an answer to a closely related question for a different survey.
[4] The response was "NTT Communications respects the privacy rights of our customers and complies fully with law enforcement requests as permitted and required by law."
[5] The response was "Verizon complies with applicable laws and does not comment on law enforcement or national security matters."

I agree that Surveillance on communications in which a US person is a participant should be subject to a warrant requirement, regardless of whether the US person is the target. Did you know there is more surveillance than what you read about? I am a victim of stalking, and many of you may be also, but you mistakenly think only you have worse luck than average. Organized MULTIPLE stalkers are right-wing groups who target whistleblowers, judges, liberals, etc for low-level warfare in the form of mimicking life's little calamities. This is proven by a private investigator who infiltrated these groups for 12 years, David Lawson. Even scarier is that the right wing is targetting progressive singles for dating!! No kidding. This is a mafia tactic too. If you are a liberal like me, just stay single! The conservatives have sent me dozens of men (I had no dates for 15 years until I became a target of stalkers).

KLynn: I'm not sure Qwest is "the resistance" as much as they are "the incompetant." The accounts I've heard suggest not that Qwest was not as much unwilling as unable/i> to comply with the government's request.